Texas Healthcare Directive Guide
Guide to Texas Medical Power of Attorney and Directive to Physicians under Health and Safety Code 166. Covers signing and witness rules.
Texas uses two separate documents to handle your healthcare wishes: a Medical Power of Attorney and a Directive to Physicians. The Medical Power of Attorney names someone to make medical decisions when you cannot. The Directive to Physicians tells your doctors what treatments you want or do not want at the end of life. You should have both.
This guide covers how each document works under Texas Health and Safety Code Chapter 166, what the signing requirements are, and the Texas-specific rules that set these documents apart.
What These Documents Do
Medical Power of Attorney (H&S Code Ch. 166, Subchapter D)
This document names an agent to make healthcare decisions on your behalf. Your agent's authority begins only when your attending physician certifies in writing that you lack the capacity to make your own medical decisions.
Your agent can:
- Consent to or refuse medical treatments
- Choose healthcare providers and facilities
- Access your medical records
- Make decisions about surgery, medication, and diagnostic testing
- Make decisions about withdrawing or withholding life-sustaining treatment
Your agent cannot:
- Authorize assisted suicide
- Make decisions that conflict with your Directive to Physicians
Texas law requires a specific disclosure statement on the Medical Power of Attorney document. The statutory form includes this disclosure, and using it ensures compliance.
Directive to Physicians and Family (H&S Code Ch. 166, Subchapter B)
This is the Texas version of a living will. It gives your doctors direct instructions about life-sustaining treatment when you have a terminal or irreversible condition.
A Directive to Physicians applies when:
- Terminal condition - an incurable condition that will result in death within a relatively short time
- Irreversible condition - a condition, injury, or illness from which, to a reasonable degree of medical probability, there can be no recovery, and treatment (other than comfort care) would be ineffective
You can direct your doctors to:
- Withhold or withdraw life-sustaining treatment
- Provide life-sustaining treatment in all cases
- Let your agent decide based on your known wishes
The attending physician must determine that you have a terminal or irreversible condition before your directive takes effect.
Out-of-Hospital DNR
Texas also offers a separate Out-of-Hospital Do Not Resuscitate (OOH DNR) order. This applies specifically to emergency situations outside a hospital. If paramedics arrive at your home or the scene of an accident, the OOH DNR tells them not to perform CPR or other resuscitation measures.
The OOH DNR is different from your Directive to Physicians. It requires your physician's signature and follows a specific form approved by the Texas Department of State Health Services.
Who Can Create One
To create a Medical Power of Attorney or Directive to Physicians in Texas, you must:
- Be a competent adult (18 or older)
- Not be acting under duress, fraud, or undue influence
- Understand the purpose and effect of the document
You do not need to be a Texas resident. If you receive medical care in Texas, Texas-compliant documents are worth having.
How to Create a Medical Power of Attorney
Step 1: Choose your agent. Texas restricts who can serve as your agent. The following people cannot serve (unless they are related to you):
- Your treating healthcare provider
- An employee of your healthcare provider
- Your spouse or heir of the above
Pick someone you trust who is not disqualified.
Step 2: Define your agent's authority. You can give your agent broad power over all medical decisions or limit their authority to specific situations. The more clearly you define their role, the fewer disputes will arise.
Step 3: Include the disclosure statement. Texas law requires a specific disclosure statement on the Medical Power of Attorney. The statutory form in Chapter 166 includes this statement. Using the statutory form is the easiest way to comply.
Step 4: Sign the document. You need either:
- 2 witnesses, OR
- Notarization
Either option works. You do not need both.
Signing Requirements for Medical Power of Attorney
| Requirement | Details |
|---|---|
| Principal's signature | Required |
| Option A: Witnesses | 2 required |
| Option B: Notarization | Sufficient on its own |
| Disclosure statement | Required (included in statutory form) |
| Attorney | Not required |
Who Cannot Be a Witness
At least one of your witnesses must not be:
- Your designated agent
- Related to you by blood or marriage
- Entitled to any portion of your estate
- Your attending physician
- An employee of your attending physician
- An employee of a healthcare facility in which you are a patient who is providing direct patient care
How to Create a Directive to Physicians
Step 1: Decide your treatment preferences. Think about what you want if you are diagnosed with a terminal or irreversible condition. Address life support, mechanical ventilation, CPR, tube feeding, and dialysis.
Step 2: Choose your approach. Texas gives you three options in the statutory form:
- Direct your doctors to withhold or withdraw life-sustaining treatment
- Direct your doctors to provide life-sustaining treatment
- Let your agent make the decision based on your known wishes and values
Step 3: Sign the document. The Directive to Physicians requires either 2 witnesses or notarization (Section 166.032). Either method is valid.
Signing Requirements for Directive to Physicians
| Requirement | Details |
|---|---|
| Principal's signature | Required |
| Option A: Witnesses | 2 required |
| Option B: Notarization | Sufficient on its own |
| Attorney | Not required |
When These Documents Take Effect
Medical Power of Attorney: Your agent's authority begins when your attending physician certifies in writing that you lack the capacity to make your own healthcare decisions. If you regain capacity, your agent's authority suspends. It reactivates if you lose capacity again.
Directive to Physicians: This takes effect when your attending physician determines you have a terminal or irreversible condition. Until that determination, the directive has no effect on your care.
Out-of-Hospital DNR: This is always in effect once signed by you and your physician. Emergency responders follow it when they encounter you outside a hospital setting.
HIPAA and Texas Privacy Law
Here is an important gap in Texas healthcare planning: neither the Medical Power of Attorney nor the Directive to Physicians automatically includes HIPAA authorization. You need a separate HIPAA release form to make sure your agent can access your medical records without delays.
Texas also has its own medical privacy law. House Bill 300 (Texas Medical Records Privacy Act) provides additional protections beyond federal HIPAA. Your separate HIPAA authorization should reference both federal and Texas privacy requirements.
Without a HIPAA release, your agent may face obstacles when trying to get information from your doctors. Create the HIPAA release at the same time you create your Medical Power of Attorney.
Special Rules to Know
Agent disqualification. Texas is stricter than many states about who can serve as your agent. Your treating healthcare provider, employees of your healthcare facility, and their spouses or heirs are all disqualified, unless they are related to you by blood or marriage. This prevents conflicts of interest.
No expiration on the Medical Power of Attorney. Your Medical Power of Attorney does not expire unless you include an expiration date. Without one, it stays valid until you revoke it.
Directive to Physicians expiration. Your Directive to Physicians also does not expire.
Physician disagreement. If your attending physician disagrees with your directive or your agent's decisions, they must make reasonable efforts to transfer you to a physician who will comply. Texas law (H&S Code 166.046) includes a process for resolving disagreements, which can involve an ethics or medical committee review.
Pregnancy clause. Texas law provides that a person cannot withdraw or withhold life-sustaining treatment from a pregnant patient. This has been a subject of legal debate, and the specifics may evolve. Review this with an attorney if it applies to your situation.
Out-of-state recognition. Texas generally honors out-of-state advance directives if they were valid in the state where they were executed. If you split time between Texas and another state, consider having documents for each.
How to Update or Revoke
You can revoke either document at any time if you have capacity.
To revoke a Medical Power of Attorney:
- Sign a new Medical Power of Attorney (revokes the prior one to the extent of any conflict)
- Notify your agent in writing that you are revoking their authority
- Verbally tell your attending physician (they must note it in your record)
- Execute a written revocation
To revoke a Directive to Physicians:
- Sign a new directive
- Destroy the document with intent to revoke
- Write a signed, dated revocation
- Verbally tell your attending physician
Verbal revocations are effective immediately, but make sure your physician documents it.
Common Mistakes
Missing the disclosure statement. Texas requires a specific disclosure statement on the Medical Power of Attorney form. If your document does not include it, a court or healthcare provider may question its validity. Use the statutory form to avoid this issue.
Not creating a separate HIPAA form. Unlike some states, Texas does not build HIPAA authorization into its healthcare directive documents. Without a standalone HIPAA release, your agent may struggle to access your medical information.
Naming a disqualified agent. If your agent is an employee of the healthcare facility where you receive treatment, they cannot serve. Check the disqualification rules before finalizing your document.
Confusing the Directive with the OOH DNR. The Directive to Physicians applies in clinical settings after a doctor confirms your condition. The Out-of-Hospital DNR applies in emergency situations outside the hospital. They are different documents for different scenarios.
Relying on only one document. The Medical Power of Attorney covers situations where you cannot make decisions. The Directive to Physicians covers end-of-life treatment preferences. If you only have one, there are gaps in your protection.
Not talking to your agent. Your agent needs to understand your values and preferences before a crisis happens. Have the conversation. Be specific. Discuss scenarios. The more they know, the better they can advocate for you.
How This Fits Into Your Estate Plan
Your Texas healthcare directives are part of a larger estate plan. Most Texans also need:
- A last will and testament for asset distribution
- A durable power of attorney for financial decisions
- An understanding of Texas probate procedures
The Medical Power of Attorney and Directive to Physicians handle the medical side. A financial power of attorney handles money and property. Your will handles what happens to your assets after death. Together, they provide full protection.
The Bottom Line
Texas gives you two healthcare planning tools: a Medical Power of Attorney and a Directive to Physicians. You need both, plus a separate HIPAA authorization form. Use the statutory forms in Health and Safety Code Chapter 166 to make sure you comply with Texas law.
Create these documents while you are healthy. Tell your agent what you want. Give copies to your doctors, your agent, and your family. Review them every few years or after any major life event. And do not forget that separate HIPAA release.